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Understanding the Emergency
Published on: Sunday, January 17, 2021
By: Fuad Tengku Ahmad
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Credit: blog.pnas.org
ON the 11th of January 2021 the Yang di Pertuan Agung (‘YDPA’) declared an emergency throughout the whole of Malaysia via a Proclamation which has since been gazetted into law (PU(A)7 of 2021) (the ‘Proclamation’).

This article will briefly outline first the legal basis of the said Proclamation and second the powers and responsibilities which are granted to the YDPA and Parliament during an emergency.

Article 150 of the Federal Constitution

The Proclamation was made by the YDPA in accordance with Article 150(1) of the Federal Constitution. The YDPA’s decision to proclaim an emergency was made because he was satisfied that ‘a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof’ was threatened as a result of the Covid-19 pandemic.

A proclamation under Article 150(1) may be made before the ‘actual occurrence’ of an event which threatens the security, economic life or public order of the Federation as long as the YDPA is satisfied that there is an ‘imminent danger’ of the occurrence of such an event: Art.150(2). Once made, the Proclamation must be laid before both Houses of Parliament. This requirement is expressly made under Art.150(3) of the Federal Constitution.

Powers of the YDPA to make laws during an Emergency

During an emergency, the YDPA may, if he is satisfied that ‘immediate action’ is necessary, make ‘such ordinances as circumstances appear to him to require’. In other words, the YDPA can make any law that he feels is necessary to address the circumstances during an emergency: Art.150(2B).

Unlike laws made by Parliament, an ordinance made by the YDPA does not have to pass through Parliament in order to come into effect. The YDPA can unilaterally promulgate laws during an emergency. Further, any ordinance made by the YDPA shall not be deemed ‘invalid on the ground of inconsistency with any provision of’ the Federal Constitution. This means that the YDPA can make laws during an emergency which would, in normal times, be unconstitutional: Art.150(6).

Of interest to Sabah and Sarawak are the powers conferred upon the YDPA under Art.150(4) which permits the YDPA to make laws for and to override the executive powers of the States. This means that the YDPA can make laws for Sabah and Sarawak and could, theoretically, assume the executive powers of each States’ Cabinet. Fortunately, neither of the aforesaid has occurred.

The Role of Parliament During an Emergency

There is no provision contained in Article 150 which calls for the suspension of Parliament or the suspension of any State Legislative Assembly. In fact, the opposite is arguably true since Article 150 confers on Parliament, important oversight functions.

For instance, Parliament can nullify by a ‘resolution passed by both Houses’ any proclamation of emergency made or any ordinances promulgated by the YDPA: Art.150(3). 

It must also be added that any ordinances made by the YDPA must also be laid before both Houses of Parliament where the same may be debated and, potentially, nullified. Further, it appears from the words of Art.150(2B) that the YDPA may only make ordinances if both Houses of Parliament are not sitting concurrently.

It will also be observed that during an Emergency, Parliament may continue to make laws and is empowered to do so by Art.150(5). Article 150(6) of the Federal Constitution confers upon Parliament the power to make emergency laws which, are immune from challenge on the basis of unconstitutionality.

The Courts have also recognised that Parliament continues to function during an emergency. In Osman v Public Prosecutor [1967] 1 LNS 117 Viscount Dilhorne in giving the judgement of the Privy Council held that:

“By article 150 of the Constitution the Yang di-Pertuan Agong was given power in certain circumstances to issue a proclamation of emergency, and, while such a proclamation was in force, Parliament was given power by article 150(5) notwithstanding anything in the Constitution, to make laws with respect to any matter if it appeared to Parliament that the law was required by reason of the emergency. Article 150(6) provided that subject to article 150(6A) (which is not relevant to this case), no provision of any Act of Parliament so passed should be invalid on the ground of inconsistency with any provision of the Constitution.

The various provisions outlined above clearly show that Parliament plays an important role in the administration and oversight of an Emergency. This envisages an active and functional Parliament since it would be impossible to give effect to the intent and purpose of Articles 150(3) and 150(5) if Parliament were closed or suspended. Whether the Covid-19 epidemic constitutes a sufficient basis for declaring an emergency.

The words security, economic life and public order of Malaysia contained in Article 150 of the Federal Constitution are not defined in the Constitution.

This notwithstanding, it is arguable that the Covid-19 pandemic is a matter relating to a public health and thus is not a security, economic life or public order issue. If this is correct, then it can be argued that Article 150(1) does not support the proclamation of an emergency since public health is not one of the grounds upon which an emergency may be declared.

However, the Prime Minister, Tan Sri Muhyiddin Yassin, in the days leading up to the Proclamation did state that the nation’s public health facilities are beyond capacity and that health services are in danger of collapse. This can be taken as a threat to economic life and public order since it is foreseeable that a collapse in Malaysia’s health system would lead to serious civil unrest and economic strife. In such circumstances, an emergency proclaimed under Article 150(1) would be appropriate if the threat was both severe and of substantial magnitude.

In any event whether the YDPA was correct in determining that the Covid-19 epidemic is a threat to the security, economic life and public order of Malaysia, is not a question which can be challenged in any judicial review proceedings in the Courts. This is expressly provided by Article 150(8) of the Federal Constitution and the courts are almost certain to rule that the YDPA’s decision to proclaim an emergency is not justiciable.

The constitutional approach to the Proclamation.

It is clear that Article 150 confers upon the YDPA broad and far-reaching legislative and executive powers. Whilst doing so, Art.150 also stipulates the role that Parliament must play in administering and controlling the use of emergency powers.  Therefore, it is appropriate that Parliament be convened in order that the Proclamation be laid before both its Houses and so that it can perform its functions as required by Articles 150(5) and 150(6) of the Federal Constitution.

- Fuad is a veteran lawyer

 





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